From Tuesday’s decision in Robertson v. Upchurch by Judge William Campbell (M.D. Tenn.):
Plaintiffs allege that [Defendant Ryan] Upchurch is a media personality who has approximately 3,140,000 subscribers on YouTube. Plaintiffs also allege that Kiely Rodni, the granddaughter of Plaintiff David Robertson and daughter of Plaintiff Daniel Rodni, disappeared after a party near Tahoe National Forest on August 6, 2022.
Plaintiffs state that on August 13, 2022, after Kiely Rodni’s disappearance, Upchurch began making social media post about her disappearance and offered “theories” of what happened to Kiely Rodni, including that other YouTube personalities were involved in or responsible for Kiely Rodni’s disappearance. Kiely Rodni’s body was discovered on August 21, 2022. That same day, authorities confirmed that the body was “more than likely” Kiely Rodni and that an autopsy had been ordered to confirm the identity. On that same date, Upchurch learned that Kiely Rodni’s body had been discovered and purported to offer a “prayer” for Kiely Rodni and her family.
On that date, Upchurch posted that “nobody should really be doing anything about this now. There really shouldn’t be anything put anywhere that’s gonna make her mom even more devastated than she’s already gonna be.” Plaintiffs allege that Upchurch accepted on August 21, 2022, that Kiely Rodni was real, that she had died, and that further online posting relating to her could traumatize her family.
On August 22, 2022, Upchurch posted a video in which he appeared to express his condolences to Kiley Rodni’s family. On August 23, 2022, authorities confirmed the identity of Kiely Rodni’s body. On August 28, 2022, Upchurch posted a video in which he accused the sheriff’s office that identified Kiely Rodni of being a “fake police department” and stated that Kiely Rodni’s disappearance was fake and that the police were involved in faking her existence and death. On August 29, 2022, Upchurch posted a video that Kiely Rodni and her family were “not real” and that her death was a “scam” to raise money on GoFundMe.
On September 1, 2022, Upchurch posted a phone number and address for Daniel Rodni. Plaintiffs allege that a result of this video and the ensuing negative attention he received, Daniel Rodni went into hiding and made substantial investments in home security, surveillance, and cameras. On September 3, 2022, Upchurch posted a video stating that “Kiely Rodni is not Kiely Rodni. Kiely Rodni is Callie Ross. Callie’s Ross’s dad is fake Kiely Rodni’s grandpa…”. On that same date, Upchurch posted a video stating “I would not say this unless I was 100% confident. Kiely Rodni is not real. Her grandfather is not real. Her dad is not real. Her mom is not real…All the pictures and videos you’re seeing of this Kiely Rodni person are actual pictures and videos from someone else named Callie, that are five to seven years old.”
On October 13, 2022, news outlets reported the results of the coroner’s Final Report of Investigation into Kiely Rodni’s death, which concluded that the manner of death was an accident and the cause of death was drowning. On December 22, 2022, Upchurch posted a video stating “[l]et’s be honest with ourself [sic], at this point in the video, there is nothing to lead me to believe that this person is real. The Kiely Rodni person. There is nothing that shows me she’s real yet.” In response to a comment to this video, Upchurch commented “I’m making an insane amount of money…I’m a good guy and im [sic] rich. Fighting evil that is rich. Cause that’s what I do.”
After this lawsuit was filed, Upchurch posted a message on YouTube stating “I’m not at all sorry for anything I’ve ever said on the internet. At all. What so ever. And never will be. Period. That’s all i [sic] wanted to say lol.”
Plaintiffs sued for defamation and related torts, and the court allowed the claim to go forward:
Upchurch argues that his statements are opinions and protected by the First Amendment. Upchurch contends that the specific language and the context demonstrate that the statements were opinions. Upchurch also alleges that he made the statements without personal knowledge and formed his opinions based on reports, statements, photographs, interviews, and information that he disclosed to his audience. Upchurch argues that “[v]iewers are certainly not led to think that Mr. Upchurch is presenting objective assertion of facts rather than his opinion on facts that they have an equal opportunity to analyze.”
In response, Plaintiffs argue that Upchurch’s statements may be proven false by objective evidence. In support of this argument, Plaintiffs point to Upchurch’s statement that “I would not say this unless I was 100% confident. Kiley Rodni is not real. Her grandfather is not real. Her dad is not real. Her mom is not real…All the pictures and videos you’re seeing of this Kiely Rodni person are actual pictures and videos from someone else named Callie, that are five to seven years old… I’m about to post the proof and show you guys.” . Plaintiffs contend that Upchurch made a false factual assertion that Plaintiffs are not real people and failed to use qualifying or cautionary language. Plaintiffs further point out that, in addition to accusing Plaintiffs of not being who they claim to be, Upchurch asserted that Plaintiffs were relatives of a woman named Callie Ross, that Kiely Rodni was fake, and that the investigating police department was a fake police department. Plaintiffs also contend that Upchurch represented that Kiely Rodni’s death was a scam to make money via the related GoFundMe website set up for her family.
Taking the allegations in the First Amended Complaint as true, the Court finds that Upchurch’s statements were expressed in terms of absolute certainty and are objectively capable of being proven false. The context surrounding the statements also demonstrates that the statements were not merely opinions, as Upchurch contends, because Upchurch had previously stated that Kiely Rodni was real, that she had died, and that further online posting related to Kiely Rodni could traumatize her family. Accordingly, the Court finds that, taking the allegations in the First Amended Complaint as true, Upchurch’s statements are sufficient to state a claim for defamation….
Upchurch also argues that the majority of the alleged defamatory statements aren’t of and concerning the Plaintiffs. Upchurch contends that the “GoFundMe ‘scam’ comments” are not targeted at Plaintiffs. In response, Plaintiffs argue that Upchurch’s GoFundMe comments refer to the Plaintiffs by implication. Specifically, Plaintiffs state that the Complaint alleges that the GoFundMe was titled “Support for the Family of Kiely Rodni” and that Plaintiffs are members of Kiely Rodni’s family.
The First Amendment requires that statements upon which a defamation claim is based “must specifically refer to or be ‘of and concerning’ the plaintiff in some way.” However, under California law, defamatory statements directed toward a discrete group of people are sufficient to state a claim for defamation where the group is sufficiently small. The California Court of Appeals has recognized that a family constitutes a sufficiently small group.
The Court agrees with Plaintiffs that Upchurch’s comments regarding the GoFundMe, which was established for Kiely Rodni’s family, concern Plaintiffs as members of her family. Accordingly, taking the allegations in the First Amended Complaint as true, the Court finds that Plaintiffs have pled facts sufficient to state a claim for defamation….
Plaintiffs bring a claim against Upchurch for defamation per se in violation of California Civil Code § 46. “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: … charges any person with crime, or with having been indicted, convicted, or punished for crime.” California Civil Code § 46.
Plaintiffs allege that Upchurch’s statements accusing them of participating in a GoFundMe scam falsely accuse them of committing acts of moral turpitude, including fraud. Upchurch argues that Plaintiffs’ defamation per se claim should be dismissed because the allegations in the First Amended Complaint do not support that he accused Plaintiffs of crimes of moral turpitude. Upchurch again argues that the statements related to the GoFundMe are not “of and concerning” Plaintiffs and that Plaintiffs do not set out any instances of Upchurch alleging that Plaintiffs themselves were involved in any scam or fraud.
Here, Plaintiffs allege that Upchurch made a social media post that “[t]he only crime that is going on is… a scam to get GoFundMe money….” Plaintiffs also contend that Upchurch suggested the Kiely Rodni case was a scam to raise money through GoFundMe and stated “Do you realize that you can be a millionaire on GoFundMe by catfishing people with internet deaths?…Look at the Kiely Rodni GoFundMe. It’s made $63,000 in the past seven days. That’s one GoFundMe for Kiely Rodni…It’s free money that gets the heat off of you because everybody’s looking for a …person that you made up because, why, because you pushed a car in the lake?” .
The Court finds that, taking the allegations in the First Amended Complaint as true, Plaintiffs have stated facts sufficient to state a claim for defamation per se under California law….
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